[1990] UGHC 36

The Hen. Mr. Justice A. R. Solvai

## THE REPUBLIC OF UGARDA

IN THE WIGH COURT OF UGANDA AT KANPALA

CIVIL SUIT NO. 576 OF 1990

GARUGA PROPERTIES LTD. ................... PLAINTIFF. VERSUS

CITY COUNCIL OF KANDALA ................. DEFENDANT. BEFORE:- The Honourable Mr. Justice J. W. N. Tsekooko

## O R D E R

The applicant has instituted an application by Chamber Summons under 0.37 Rule 1 (a) of the Civil Procedure Rules by which is seeking to get a temporary Injunction restraining the respondent its agents and or servants and/or those claiming from and/or under it from giving out further leases, extending the existing ones when they expire, giving any or further permission or continuing the same to any person to commence or continue construction, approving any more construction plans or hy itself, its agents and/or servants or through any person claiming from or under it carrying out any constructions or developments in respect of and/or upon the suit land comprised in Leasehold Register, Volume 1224, Folio 15 Plot No. 204 Mbuya (approx. 6 Acres) or as subsequently subdivided or designated by the defendant.

The Summons is supported by affidavit sworn by Charles Twinomukunzi, a director of the applicant, on 1st October, 1990. There is no affidavit in reply thereto. The matters deponed therein are thus uncontraverted.

In his address, Dr. Byamugisha, learned Counsel for the applicant gave background of acquaition from the land

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commission of title deed to the disputed land by the applicant. The- respondent deemed the "said title invalid and instead of considering the applic?.t5 oil •'of -the .applicant for proper lease, the .respondent consi-.b.-red'other • applications and granted leases to Lubega, Rut-ole and -Akena in respect of portions of the same land in disregard of the applicant's customary and equitable interests in the land. The appTicvm-t wants the court to cause th respondent not to allov ' the ' aboveprospective developers or any of them to start development or continue development until the suit is hoard and deter-min.e.d.

He submitted that the three prosepctive developers took t'he leases with the knowledge of the applicant's interests. That the applicant had fenced the land and commenced developments thereon for purposes of setting up ^a housing estate of which the respondent is aware. That on the consideration for balance of convenience, the applicant who had ^a prior title, though considered, bad, and had commenced developments before the three developers, should be given the benefit .of the balance of the convenience. But :1c and Akena stopped development after RC1 of the area warrod the::; of the existence of this disputes That Lubega has recently been authorised by a servant of the respondent to continue development although Lubega's plans have not been approved by the City Council yet.

Mr. Ssendege, learned counsel for the respondent opposed the application ar.,aing that the requirements of 0.57 Rule ¹ had not boon complied with because (1) plaintiff had not made oiit ^a prima facia cast? as it has. no'protectable interests in as much as K. C. C.'is the centroIlin: authorit;- of disputed land and has a :•-? -t to grant leases to ''-ody in virtue of

Section 17 of Public Lards Act 1969. That Public Land Commission had no authority to give title to respondent.

It is true that by Section 17 of the Public Lands Act. 1969 a Controlling Authority, in our case the respondent, has full powers to grant estates and create rights and interests in public land vested in it. I don't wish to go into the merits ar demerits of the subdivision of the disputed land which is really the subject to be dealt with in the main suit, but there are authorities to the effect that a person holding customary tenure in respect of the land to be alianated must be considered for lease if he applies. See Section 25 of the Public Lands Act 1969 which states "Any person holding by customary tenure may, at any time, apply to the controlling authority to grant him a lease hold estate in the public land occupied by him at the time of such application; and the controlling authority shall, in accordance with this Act, make such grant". In the case of Matovu and 2 others Vs. S. Sevire and another $\sqrt{19797}$ H. C. E. 174, the Court of Appeal for Uganda in holding Mc. 4 hold "The Commission can grant a title to any applicant, but pursuant to Section 25 of the Public Lands Act, 1969, if a person holding land by customary tenure also applies he must be granted the title. Even if for considerations of tublic policy the commission feels that another person would utilize the land better and wishes to grant such other person a title, the customary tenure must be heard. In the exercise of its discretion under the Land Reform Decree 1975, the Commission must observe the principles of Natural justice". In My view this statement appears to be applicable to this case. I therefore do not accept Mr. Ssendege's. view that the applicant had not made out a prima facie case.

$...$ , $14$

On this basis even the other two points of submission by Mr. Ssendege don't stand, ,^'hose two other submissions were that the balance of convenience favours the respondent and that the applicant had not shown that he would suffer irreparable damage. In High Court Civil Suit Mo, 700 of 1961 Buikwa Estate Coffee Works Ltd. Vs. S\* Lutabi M. B, Ho. 44/6'1 Bennet J, as he then was, dealt with similar situation and adopted the following principles from A. L. P. Commentaries, ⁴ th Edition, Volume III, page ²J9'O4; that considering the provisions of 0\*37 rule ¹ "''the applicant should satisfy the court firstly that there was a serious question to be tried in the suit, and that on the facts before the court, there was a probability of his being entitled to the relief asked for by him, secondly that the court'^s interference was necessary to protect him from the species of injury which the court called irreparable before his legal rights could be•established on trial and thirdly that the comparative convenience which was likely-to issue from withholding the injunction will be- great er than that which was likely to'arise from granting it", Th-?se same principles are also quoted in identical terms in the reference quote by Mr. Ssengerrdo, namely commentaries on the Cbr'^e of Civil Proc'.dure (India) 2nd Edition Volume III at page ²⁵²⁴ by Chitaley and K. M. Annaji Rao. Each of the three principles in ry considered view is applicable to the present case ar ¹ ,l r p<-ctfully adopted and apply them to this ^application.

As I Lave .ariior indicated the probability of the applicant being; entitled to the reliefs prayed for in the plaint - is obvious.

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Thera is the uncon hrovertrd evidence that ; ! o.pplxo.&nr nas a building on the land which was purchased in 1980; that the applicant has coi-imenced developments on the 1and upon wnich a housing estate is to be built ⁵ that the applicant acquired title to it though the respondent considers it invalied yet that title has not been conceited. The respondent was aware of all these before it chose to subdivide the ..land in total disregard of these interests of the applicant. By 2^ th September, 1990 Lubega's plans has not been approved by respondent, The East African Court of Appeal in the case of Ciella. Vs. Cassnian Brown /1973? SA 35'3 stated that ''when the court is doubt, it will decide an application (for induction) on the balance of concenience". But hero ¹ have no doubt that the balance of convenience favours the applicant.

In my considered view it is arguable as to whether depriving an occupier of land by customary tenure of 6 acres of land in Kampala City area which land is being developed or projected for housing estate development is not irreparable damage considering that such occupier may not acquire suitable alternative land. Monetory compensation is unlikely to be good atonement .

Bearing all the submissions made to me by both counsel and having considered all the facts and circumstances and affidavit filed in this applicant, I think that it is right and proper for me to grant the application. I order that a temporary injunction be and is hereby granted in the terms proposed.

I so order.

The costs of this application shall be costs in the couse

TSbKOOKO '

7 ⁱ - ¹

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$16/11/1990$ at 0.06 ...

Dr. Byamugisha for coplicant/plaintiff. Mr. Ssendege for respondent/defendant. Wagaba - Interpreter. Order delivered.

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$\frac{1}{2\pi} \left( \frac{1}{\sqrt{2}} \right)^{\frac{1}{2}}$ J. M. W: WEKOOKO JUDGE $16/11/1990.$